The Times They Are A Changin’ For Employers and Employees

The labor market is changing, perhaps assuming one of its final forms. In addition to a lack of federal law in other areas I’ve discussed related to public sentiment and the changing nature of work, the growth of technology is spurring on different changes.  We have watched technology completely transform the way we work, and over the years it has become apparent that it seems to have one goal: making labor as cheap as possible, and then expendable. While as long as mankind runs things, there will always need to be someone to program the machines, machines are taking over more and more unskilled labor. The only unskilled labor remaining seems to be labor that machines are too expensive to do, or not currently adept enough to do. But that will be remedied, I’m sure, in a matter of time.

This is a bit of cause for alarm, in a lot of ways. Workers are treated as more fungible and less deserving than ever before. And given the stagnant pace of the federal government in creating a united front for the issue of workers’ rights (the NLRB can’t do everything), states are stepping into the gap in two key areas: minimum wage and paid leave.

Paid Sick Leave

I didn’t realize there were jobs where you have no paid leave at all until I worked at Marshalls when I was 17, the summer before I went to college. While working as a part-time hourly worker at Marshalls, I had no leave of any kind.

That’s fine for a 17-year-old about to go off to college, who is abnormally healthy and who runs five miles or more a day. That’s not fine for the average worker. And retail stores aren’t the only places that don’t have any leave whatsoever. More companies than you would think don’t provide leave of any kind. My example of retail, despite popular notions about college kid workers, is a big part of the service industry that employs more than 120 million people in this country. While some of my co-workers at Marshalls were just like me, there were also a lot of people working there who were much older, and for whom the position was a career. And for them, leave is very necessary. Human beings get sick, and the loss of a paid day at work can ruin someone’s finances in a way that is hard to come back from.

Why does an employment lawyer care about any of this? Because I draft leave policies, and advise clients on the need for them. And right now, an awful lot of cities and states are taking it upon themselves to right this wrong. For the time being, there will be jobs that workers have to do with unskilled labor, jobs that are essential to our economy, like making lunches for workers downtown. And those jobs, for certain cities and states, will now come with paid leave. How much? That seems to be up to your state legislators or up to the city council where your employer resides. And just who these laws cover is another issue that is not universal.

There are many theories about what this leave means for employers. Does it make things more expensive? Does it improve the economy? Employers come up with elaborate schemes for skirting local rules that increase obligations for employers. Wouldn’t it all be simpler, and even fairer for all employers and employees, if we all had one set federal policy?

State Minimum Wage

When people think of wage and hour law, and they are employment attorneys or certain well-informed HR professionals, they think of the Fair Labor Standards Act (“FLSA”). But there are many states that treat the FLSA as a floor, and not a ceiling, for how to pay workers. Recently, I advised a client regarding what they thought would be FLSA requirements, and our discussion ended up being almost entirely about state law, because that is what really matters in so many of the policies regarding wages. Federal law just says you have to pay your employees for all time worked. State law dictates how. From how long you have to pay someone their final wages (protip: not long if you fire them), to how much you have to pay them. While the “federal $15” rallying cry isn’t getting a lot of traction, New York City to $15 is (protip: plan now for $15 per hour in NYC).

Practical Takeaway

So what does this mean for an employee? It means that if you are hardworking, enterprising, and relatively mobile, you can go where the money is, literally. You can be intentional about your career (like a law school classmate of mine was), and you can see the trends in the labor market and ride the winds of change in your favor. You can go where wages are best, where benefits are good, and where you can tolerate the cost of living. You can go where you are wanted, which is always the best decision for an employee. As part of this process, consider the following:

1. Take the time to be knowledgeable about your market. One of the reasons so many employers don’t follow the law is because they assume their employees don’t know and won’t make them comply. Know right now what you are entitled to. Read your employee handbook, and be sure you take advantage of the best ways to transition from where you are, to where you want to be.
2. Invest the time in being thoughtful about your career so that you know your value. Twenty-nine states have a higher minimum wage than the federal minimum wage. Those places also happen to pay workers more in general. It makes sense to know (a) what people are paying for what you do and (b) how that translates in each market. Do your research and know your worth. Don’t leave money or opportunity on the table.

For employers, what should you do? As things currently stand in our political environment, an employer should be prepared to hold on and enjoy the ride. And keep these key issues in mind:

1. If you want to operate in places where your employees want to live, and have access to an educated workforce, understand that federal law is often not the law to be concerned with. All of the places with a highly educated workforce, including D.C., have leave laws and wage laws that exceed the federal requirements. True, you could move to West Virginia, though I don’t recommend you drink the water.  If you are in any industry that isn’t dying, you will have to import your workforce. And what would that workforce look like is anyone’s guess (all H-1B’s if I had to guess, and good luck with that business model right now), because very few people outside of West Virginia want to live in West Virginia.
   2. Be vigilant about change and stay compliant. Because of the lack of will by our current Congress to do anything, states are filling in the gaps quickly and aggressively. And for many employers, this means regularly working to stay compliant regarding wages, leave, and other benefits. Which leads me to my last employer tip:
   3. Expect to give paid leave to your employees, and expect to need to exceed the law as to required wages. Any state where you want to be either does or will soon have paid leave.  Any state where you want to be already has a minimum wage that is higher than the national average, and they are all going up.  I am quite certain that Marshalls employees here in the Denver metro area are paid more than double the $5.15 I earned as a teenager (and I was paid more than minimum wage then). The McDonalds in our neighborhood regularly advertises that its starting salary is more than $10 an hour. It might be the marijuana industry that is driving up these wages, but that is also coming to a state near you very soon.  Be prepared.

Employers who want a good stable workforce must keep with the times and stay compliant. The times for labor are a changin’, but while there is any value left for unskilled hourly labor, some states and cities will be sure that labor is worth it for the laborer. The machines are coming for many of us. At least we will have a few days of paid leave and vacation pay on the way out the door.

---

Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.